Federal Communications Commission FCC 14-39
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Covenant Network
For a New Noncommercial Educational FM
Station at Macomb, Illinois
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File No. BNPED-20071018BDN
Facility ID No. 172248
MEMORANDUMOPINION AND ORDER
Adopted: April 15, 2014 Released: April 16, 2014
By the Commission:
1. The Commission has before it an Application for Review (“AFR”) filed by Covenant
Network (“Covenant”) on February 20, 2009. Covenant challenges the dismissal of its application for a
new non-commercial FM station at Macomb, Illinois (“Application”), for failure to satisfy the community
coverage requirements set forth in Section 73.515 of the Commission’s rules (“Rules”).
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2. Covenant filed the Application during a filing window opened by the Commission in
October 2007. Subsequently, the Commission determined that the Application was mutually exclusive
with another application filed during that window.
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Covenant then amended the Application in an attempt
to eliminate the mutual exclusivity. The Media Bureau (“Bureau”) dismissed the Application as
unacceptable for filing, explaining that “an engineering study … revealed that the proposed facility fails
to provide adequate community coverage” as required by Section 73.515 of the Rules and noting that the
application did not address this coverage issue.
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3. Covenant challenged the Bureau’s decision in a “Petition for Reconsideration and
Petition for Leave to Amend and for Reinstatement of Application Nunc Pro Tunc” (“November
Petition”).
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It concurrently again sought to amend the Application to include a new exhibit, which
Covenant claimed demonstrated compliance with the Commission’s community coverage requirements.
The Bureau denied the November Petition.
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The Bureau noted that the amendment did not alter any of
the technical characteristics of the proposed station. It explained that, by its own calculations, the
proposed facility still did not satisfy the community coverage requirements and set forth the percentages
of total population and total area that it calculated the proposed station would cover.
4. Covenant challenged this decision too in a “Petition for Reconsideration and Petition for
Leave to Amend and for Reinstatement of Application Nunc Pro Tunc or, in the Alternative, Application
1
47 C.F.R. § 73.515.
2
Media Bureau Announces Groups of Mutually Exclusive Applications Submitted in the October 2007 Filing
Window for Noncommercial Educational FM Stations, Public Notice, 23 FCC Rcd 3914 (MB Mar. 7, 2008).
3
Letter from Rodolfo F. Bonacci, Assistant Chief, Audio Division, Media Bureau, to Covenant Network (dated Nov.
7, 2008).
4
Covenant Network, Petition for Reconsideration and Petition for Leave to Amend and for Reinstatement of
Application Nunc Pro Tunc (rec’d November 13, 2008).
5
Letter from Rodolfo F. Bonacci, Assistant Chief, Audio Division, Media Bureau, to Covenant Network (dated Dec.
8, 2008).
Federal Communications Commission FCC 14-39
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for Review” (“December Petition”). It again sought to amend its Application to include a new coverage
exhibit.
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The Bureau dismissed the December Petition and rejected the amendment,
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citing the
Commission’s established policy, announced in 1984, of denying nunc pro tunc reconsideration rights to
an applicant whose application is returned or dismissed a second time.
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5. Covenant seeks Commission review of these Bureau decisions. It argues that the Initial
Bureau Decision failed to comply with the precedent set forth in Salzer v. FCC,
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and Glaser v. FCC,
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and
asserts that various aspects of the Bureau decisions violated the Administrative Procedure Act.
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Covenant makes these arguments for the first time in its AFR.
6. Upon review of the AFR and the entire record, we conclude that Covenant’s arguments
must fail because Covenant never presented them to the Bureau. Section 5(c)(5) of the Communications
Act of 1934, as amended, and Section 1.115(c) of bar applications for review that rely “on questions of
fact or law upon which the [designated authority issuing the decision] has been afforded no opportunity to
pass.”
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7. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 5(c)(5) of the
Communications Act of 1934, as amended,
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and Section 1.115(c) of the Commission’s Rules,
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the
Application for Review filed by Covenant Network IS DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
6
Covenant Network, Petition for Reconsideration and Petition for Leave to Amend and for Reinstatement of
Application Nunc Pro Tunc or, in the Alternative, Application for Review (rec’d December 15, 2008).
7
Letter from Rodolfo F. Bonacci, Assistant Chief, Audio Division, Media Bureau, to Covenant Network (dated Jan.
16, 2009).
8
Id., citing Commission States Future Policy in Incomplete and Patently Defective AM and FM Construction Permit
Applications, Public Notice, 56 RR 2d 776 (1984). In imposing this procedural rule thirty years ago, the
Commission observed: “Incomplete and patently defective applications place an inordinate burden on our
processing staff. This burden entails repeated requests by the staff for information clearly called for by the
application. This delays the processing of not only the incomplete and patently defective applications, but also the
processing of grantable applications. More important, service to the public in the initiation of new broadcast service
is delayed.” Id. at 777.
9
See AFR at 7-10, citing Salzer v. FCC, 778 F.2d 869 (D.C. Cir. 1985).
10
See AFR at 9, citing Glaser v. FCC, 20 F.3d 1184 (D.C. 1994).
11
Id. at 11-14.
12
See 47 U.S.C. § 155(c)(5); 47 C.F.R. § 1.115(c).
13
47 U.S.C. § 155(c)(5).
14
47 C.F.R. § 1.115(g).